Ashby v Police - [2023] NZHC 2869

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-160

[2023] NZHC 2869

BETWEEN
DARREN JAMES ASHBY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 October 2023

Appearances:

P N Dyhrberg for Appellant

G E R Alloway for Respondent

Judgment:

13 October 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 13 October 2023 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

ASHBY v NEW ZEALAND POLICE [2023] NZHC 2869 [13 October 2023]

Introduction

[1] Darren Ashby was sentenced to two years and two and a half months’ imprisonment by Judge Couch1 for one charge of dishonestly taking a vehicle,2 one charge of dishonestly and without claim of right using a debit card,3 one charge of intentionally damaging property,4 one charge of arson,5 one charge of contravening his driving prohibition,6 and one charge of failing to stop.7

Facts

[2] The victim of the offending was the owner of two adjacent farm properties. On 29 January 2023 around 11 pm, Mr Ashby was locked out of the victim’s property by his partner due to his drunken and aggressive state. Mr Ashby proceeded to smash a window to gain entry. He then left the property and walked to a farm property owned by the victim. He proceeded to pour petrol on the ground three metres in front of two elevated fuel tanks, one containing petrol and the other diesel. He then set fire to the poured petrol.

[3] Mr Ashby broke a glass filter and poured diesel onto the ground from one of the tanks, although it did not reach the lighted petrol. At this time, a neighbour saw the fire and extinguished it with water from a dog bowl. The victim’s home was around 200m from the blaze. Mr Ashby then ran toward the victim’s house and yelled abuse. Mr Ashby got into the victim’s vehicle and, using the keys which were in the ignition, drove to a petrol station. Mr Ashby was banned from driving on 12 November 2016 because he never held a licence.

[4] Around 2:28am on 30 January 2023, Mr Ashby used the victim’s debit card, located in his car, to spend $121.90 on cigarettes and petrol. He then purchased another item at $4.50.

1      Police v Ashby [2023] NZDC 16092.
2      Crimes Act 1961, s 226(1); maximum penalty seven years’ imprisonment.
3      Section 228(1)(b); maximum penalty seven years’ imprisonment.
4      Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment.
5      Crimes Act s 267(2)(a); maximum penalty seven years’ imprisonment.
6      Land Transport Act 1998, s 52(1)(c); maximum penalty $10,000 fine.
7      Sections 52A(1)(a)(ii) & 114(2); maximum penalty $10,000 fine.

[5] Around 4:19 am Mr Ashby ignored a road detour in Rakaia and drove through Chertsey. He drove through a police crash cordon. He ignored the direction of firemen to turn around and took off at speed. He ignored flashing lights when approached by police in Ashburton…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ashby v Police

Details

AGLC: Ashby v Police [2023] NZHC 2869
Case: [2023] NZHC 2869
Decision Date: 13 October 2023

CaseChat Overview and Summary

In the case of Ashby v Police, Darren James Ashby was sentenced to two years and two and a half months’ imprisonment by Judge Couch for multiple charges including arson, dishonestly taking a vehicle, and driving in breach of a prohibition order. The court was required to determine if the starting point for the arson charge was too high, leading to a sentence that was manifestly excessive. The appeal hinged on whether the judge accurately identified the aggravating factors of the offence and whether the starting point for the arson charge was justified.

The court found that the risk to the house, located 200 meters away, was overstated and that the risk to the two fuel tanks was the primary concern. The court concluded that the starting point of two years and three months’ imprisonment for the arson charge was too high, as it was higher than sentences imposed for more serious offences. The court also found that the risk to the victim's house and the potential danger to life were overstated. Based on the impulsive nature of the offence, the lack of damage caused, and the potential risk to property, the court determined that a starting point of 20 months’ imprisonment should have been adopted. The court found no issue with the other adjustments to the sentence, such as the uplifts for the unlawful taking charge and other offences, and the discounts for the guilty plea and immaturity.

The appeal was allowed, the sentence of two years two and a half months’ imprisonment on the arson charge was quashed, and in its place, a sentence of two years’ imprisonment was imposed. The sentences on all the other charges were unaltered, including the order to pay reparation. The court reserved leave for Ashby to apply for home detention, noting that such an application would need to be carefully vetted given Ashby’s issues with compliance and self-control.

Orders